Employment tribunals – tips and traps

Introduction

Robert Shore: Hello, and welcome to the XpertHR podcast. XpertHR is a comprehensive source of leading practice, employment law and benchmarking information for HR professionals, providing solutions and expertise for every HR role, challenge and opportunity. You can find us any time of the day or night at www.xperthr.co.uk.

My name is Robert Shore, and in this edition of the podcast we’re going to be talking about employment tribunals. To do this, we are very lucky to be joined today by Tina Elliott, who now serves as an employment tribunal judge. Welcome to the podcast, Tina. [0:00:40.3]

Tina Elliott: Thank you very much, Robert.

Robert Shore: So, we’re really looking forward to getting a judge’s-eye view of tribunal proceedings. We’ll be looking at some of the things HR can do to prepare for them effectively, and offering some tips to help you avoid classic mistakes that people make or traps they can fall into.

But first, Tina, I just wanted to ask you a little about your experience prior to becoming a judge. Can you tell us a little about your background and training? [0:01:04.9]

Tina Elliott: I qualified as a solicitor many, many moons ago in the 1980s, and I’ve worked in employment law as a legal practitioner throughout my career. It’s a topic that I studied at university and loved from the word go.

In 2009 I became appointed as a part-time judge. I was still working in practice in those days in a law firm that specialised in healthcare law, and I did employment law for the healthcare sector, which was a fantastic learning opportunity.

About ten or so years ago I became a full-time salaried judge and I’ve recently reverted back to being a part-time judge. So I’ve cut my workload down but I still love it.

Robert Shore: And in the time you’ve served as a judge, has your perspective on employment law changed very much? I mean, you were a solicitor before, as you say. You’re still working with much the same material. But presumably one’s perspective changes with the role that one carried out? [0:02:07.9]

Tina Elliott: I think it’s more a question I learn more about how to do the job. I think it’s a job that you learn so much through experience. The law is there, and my opinion of the law doesn’t really matter because I’m there to apply it, whether I think it’s great or whether I don’t think it’s great. And I don’t express my opinions on what I think about the law.

Obviously there are tides of different things that come up. Many years ago there was a big wave of sort of maternity discrimination claims. Redundancy cases go up and down with the economy, that sort of thing. But for me personally, it’s just about, you know, encountering different situations, learning how to deal with situations better.

I would say in my experience at the moment there’s more of a rise in litigants in person. But yeah, that’s something we’ve always dealt with in the employment tribunal.

Understanding employment tribunals

Robert Shore: Let’s go through things step by step. For people who haven’t attended an employment tribunal who may be listening to this, where does it happen? What’s the process? Can you just sketch in a little, and you know, if you’re asked in advance, you know, to prepare somebody, how do you do that? What do you tell them? What do you need to know before you enter this process? [0:03:20.5]

Tina Elliott: It helps if you’ve got a bit of a background in employment law, certainly. I mean, if you’re on the receiving end of a claim you’ll get the ET1, which is the claim form in your next job. You get 28 days to do this. Your next job is to prepare your response to the claim, which is known as the ET3. So that’s going to be your first task.

The next thing that will happen will depend on whether it’s a more complex case, like a discrimination claim or a whistleblowing detriment claim, in which case the tribunal will allocate you a case management hearing. If it’s a more straightforward claim, like it’s unfair dismissal, holiday pay, notice pay, those types of things, it will go straight to a full hearing usually. Usually.

If you’ve got a case management hearing, they’re frequently dealt with by video. The platform we use is called CBP, so they get known as CBP hearings. The big useful thing about those hearings is they set out the issues – in other words, the questions – that the tribunal is going to have to decide at the main hearing. And getting those issues pinned down is your structure for all your preparation.

If you’re doing a bigger claim or a discrimination claim then it’s going to be many months down the road before you get to your main hearing, with all the prep steps of disclosure of documents, preparation of witness statements being the main steps along the way. Claimant doing a schedule of loss and those sorts of things.

Employment tribunal duration

Robert Shore: Yes. So actually, from receiving an ET1 through to actually beginning the tribunal proceedings, how long can that take? [0:05:05.2]

Tina Elliott: It depends on a couple of things. First of all, which tribunal region that you’re in, because it will depend how busy that particular region is. And the region is governed by the employee’s place of work. So my region base is London Central, for example. So it will depend how backed-up that region is.

It also depends on how many days that case needs for its main hearing. It’s much easier to put on a hearing that’s 1, 2 days. If it’s 3, 4 plus, then that can take a bit longer. But as a rule of thumb, I would think that if you’re doing a longer discrimination-type claim you’d be looking at a year to 18 months before your main hearing comes on.

Robert Shore: Yeah. So it’s quite a lengthy process. [0:06:00.7]

Tina Elliott: Unfair dismissal claim, you might get that on in 9 months or so but as I said, there’s so many variables with different regions and that sort of thing. But just roughly speaking, you are looking at a year or more, definitely.

Document disclosure

Robert Shore: Okay. So stamina is required. So case management hearing is the first thing, depending on the nature of the claim. And then is it document disclosure? [0:06:24.8]

Tina Elliott: Yes. If it doesn’t have its own case management hearing the tribunal will most likely have set out those steps when they send you the notice of hearing. So telling you when to disclose your documents, when to do your statements, when the claimant’s got to do their schedule of loss and that sort of thing. But the first big step after a case management hearing will usually be document disclosure.

You might have a prior step to that. If the claim is such where you look at it and you need further particulars, there might be orders for further information to come first, so that the claim is better understood and then you know what you’re disclosing your documents in relation to.

Robert Shore: Okay. And obviously document disclosure applies equally to both parties in a claim. And what sort of documentation are we talking about? [0:07:15.7]

Tina Elliott: In, say, a routine unfair dismissal claim you’d be mainly looking at disclosing the investigation report and then what’s gone behind that. So the statements that have been gathered in connection with that investigation. Then there’ll be the notes of the disciplinary hearing. There’ll be the dismissal outcome letter, then probably the papers in relation to any appeal that’s taken place. You’d want your contract of employment in there. But also, you know, maybe messages that have gone backwards and forwards internally if you’re the respondent about the case as well. So yeah, those sorts of things.

If it’s a big discrimination claim then you’re going to be needing to look at what are all the allegations, and then you’re going to need the supporting documents around each and every allegation.

Robert Shore: Okay, and does this include WhatsApps as well and social media messaging? [0:08:16.4]

Tina Elliott: It really does. The explosion in that in the last few years has been enormous, as you can probably guess. I did a hearing recently where most of the bundle was taken – and when I use that terminology ‘bundle’, it’s very ancient legal terminology but it means your set of documents – most of the set of documents was taken up with social media posts and WhatsApps, yeah.

Robert Shore: And do you think people are becoming a bit smarter about WhatsApps as to what they should say or not? Or actually, are people failing to learn? [0:08:52.1]

Tina Elliott: I don’t think so at the moment! But don’t forget, the stuff I see, I see the cases where they’ve gone wrong and they’re in litigation. And so I suppose it’s a little bit inevitable that I think no, people aren’t very careful about what they say because those are the types of cases that I see. So I’m probably not best placed to comment.

But you know, it does show in every case, be careful what you’re messaging and try and work on the basis that that might be disclosable one day, so are you sure you want to say that?

Robert Shore: Yeah. No, that’s a good tip, isn’t it, I think. And sometimes not all documents are disclosed or there’s a feeling that more might be disclosed, so there could be an application for further disclosure? [0:09:40.0]

Tina Elliott: More, yes. That can be on both sides but I think more routinely you see claimants seeking more documents from respondents. Of course it can work the other way.

I think a practical bit of info on that is I think sometimes there can be a tendency on the part of unrepresented claimants to think that the disclosure process is just, you know, ‘Send me everything I want to see.’ And I think they can sometimes get a bit muddled up with data protection subject access requests, which is completely different and which we don’t, as the employment tribunal, have the regulatory powers over. As you will know, Robert, that’s the Information Commissioner’s Office. But I think sometimes litigants can get mixed up with that.

So I would say that the sort of parameters for those extra document applications is of course it’s got to be relevant, but relevance isn’t the end of the story. It’s got to be of such relevance that it’s necessary for the fair disposal of the trial. And so there’s got to be a bit of proportionality on it as well. I think sometimes when claimants are asking for this and asking for that, if it’s not too onerous to disclose it I’d sometimes say, ‘Just go ahead and disclose it.’ But there does need to be some proportionality on it, and if it’s in dispute then it comes back to the tribunal for a judge to consider whether those documents should be disclosed or not.

Witness statements

Robert Shore: Obviously a key part of how the hearing then proceeds is with witness statements. These are very important to the outcome generally, would you say? [0:11:32.7]

Tina Elliott: The way it works in the employment tribunal is your witness statement has got to contain all the evidence that you want to give about that matter. Because the witness statements are taken as read. That means that the judge, if it’s a case for the judge’s team alone, or the full tribunal if it’s a three-person tribunal, they read the witness statements and that’s it for your main evidence, and you then are immediately cross-examined on that written witness statement. So don’t leave material stuff out thinking, ‘Oh, I can add that later,’ because it’s got to be in your witness statement in the first place. So they’re incredibly important documents.

Robert Shore: Okay, so you really need to put quite a lot of effort into getting witness statements right. [0:12:21.8]

Tina Elliott: We do. And I think what would be good tips for preparing the witness statement, if you’ve had a case management hearing where the issues, the questions that the tribunal’s got to decide, if you’ve had that in advance, use that for your structure for each witness’s statement. So some witnesses will be able to speak to some of the matters; some will speak to others. But to work through all those issues and go, ‘Well, there might be a dispute about a conversation that happened on 3 February whatever year,’ and your witness needs to set out their account of that conversation, for example. Because then the claimant will cross-examine on it. So you can use those issues as your structure and to remember that only deal with the matters that the tribunal’s got to decide, and that it must be your firsthand knowledge, your own evidence, and it must be factual and not contain opinions. Saying things like, ‘I don’t think I discriminated,’ or, ‘I don’t think so-and-so discriminated,’ that’s an opinion, and that’s something the tribunal’s got to make a finding fact on. You need to stick to what’s the narrative from your point of view as to what happened, and your own firsthand knowledge.

Robert Shore: Okay. And so the witness statement then is sort of written and structured…this is by HR and usually working with a solicitor as well. To what degree should a witness statement be authored by somebody who is not the witness? How aware are you sometimes that actually it’s been authored by somebody else, or authored to meet other needs, should I say? [0:14:06.2]

Tina Elliott: It’s a question litigants in person often ask a witness going, you know, ‘Did you write your own witness statement?’ or, ‘Who wrote your witness statement?’ I mean, one of the jobs of a solicitor is to draft witness statements, and in my career I’ve drafted more witness statements than I care to remember. But you have to remember as a lawyer that you’re drafting that witness’s statement. So that will normally have involved a meeting with that witness. In the past it would have always been in person; of course now done by Zoom and that sort of thing much more often. And you would take the witness’s account down, and in your drafting as a lawyer you’ll be putting it into the sort of shape and structure that follows the issues and all that sort of thing. But ultimately, it is that witness’s evidence. So the draft witness statement should always be sent to the witness to say, ‘Right, what are your amendments?’ so that they’ve got to be sure that that statement is reflecting what they want to say from a first-hand knowledge point of view.

So yes, they’ll have had some professional help. A lot of respondent witnesses have had professional help with the drafting. But ultimately, it must be their own evidence. And they’ll soon be caught out in cross-examination if it isn’t.

Attendance at the hearing

Robert Shore: So if a claim goes to a full hearing, do all witnesses actually have to attend in person? I imagine that could mean a lot of time away from work for managers or employees. [0:15:43.6]

Tina Elliott: If it’s an in-person hearing then yes, they are expected to turn up in person. Since the pandemic, when we’ve all learnt to do video hearings, there is a category somewhere in the middle that we call a ‘hybrid hearing’, where you might have the majority of witnesses attending but you might have one witness for some specific reason come in by video into the main tribunal room. And then some hearings are exclusively CBP, which is the code for our platform, meaning video hearings. And a judge will have made a decision earlier down the line as to whether it’s going to be a CBP or an in-person hearing.

With most big hearings you would tend to want them to be in-person anyway, but there was a time obviously a couple of years ago when we were doing everything on video.

Robert Shore: How does that change the feel of it for you? Were there new sort of phenomena that arose from video hearings? [0:16:48.8]

Tina Elliott: I think I was – and probably along with a number of colleagues – I was very skeptical at the beginning as to whether video hearings would work for main hearings. And I’ve been really pleasantly surprised at how well they often do work. I don’t think they detract hugely from the evidence that you get. And I’ve conducted to many now, I’m of the view that they do work. But I still think with a bit hearing the default position tends to be with a large hearing that it’s better to have it in person.

I had a hearing recently that felt a bit…because it hadn’t been well prepared, the claimant was in-person, she was really struggling with the documents, couldn’t find her way around them electronically, and unfortunately the hearing couldn’t go ahead and had to be adjourned, and that’s now going to be an in-person hearing. We just needed her in person so that she could be helped with the documents and so on and so forth. So yeah, sometimes in-person is the best way.

Legal representation

Robert Shore: There you’re talking about litigants in person, but where people don’t take legal representation. Do you think that has an impact on the outcome? Is it ever wise not to have legal representation? [0:18:15.9]

Tina Elliott: Look, it’s an affordability thing for litigants. So in the tribunal system we have an information sheet that we often send out to litigants in person that points them towards free sources of legal advice. But you know, we can’t speak for those organisations as to whether they’re going to have availability to take the people on and that sort of thing. It always helps if they can get some legal assistance but it’s not always possible and it’s expensive for people. So you know, you get the cases where somebody’s had a not-very-good rep and you sometimes think, ‘Well actually, I wonder if that person might have been better off if they’d done it themselves,’ but you know, there’s no one-size-fits-all on these things.

Robert Shore: Yeah, ‘cause obviously there are a lot of good resources available. Obviously you’re likely to care quite a lot about your own case as well. [0:19:10.3]

Tina Elliott: Yes. It does take over some people’s lives, unfortunately for them. When we do a case management hearing, we often explore with parties as to whether there’s a way that the proceedings could be settled because we acknowledge and understand that this is an incredibly stressful process, not just for claimants but for respondents as well. It’s a big thing for respondent witnesses, for example, to be, you know, accused of being a discriminator. That’s massive. And that hangs over them as well. So we do explore options for settlement, including the possibility of judicial mediation if both parties are interested in that.

Robert Shore: And is that a route often taken? [0:19:51.8]

Tina Elliott: The key to it is both parties have got to want it and you often get parties that don’t. You know, they want…for example, a respondent might say, ‘No, no way do we want a judicial mediation. We want to contest it. We want to defend it.’ Usually you would want the case to be a discrimination claim of 3 days or more for it to warrant the judicial time of a judicial mediation. But yes, I mean, there’s a reasonably good outcome for judicial mediations.

Evidence from overseas

Robert Shore: I think there’s a phenomena now with witnesses giving evidence from overseas in video hearings. Obviously, you know, video hearings enable this in a way that, you know, actually if you had to be in court you couldn’t have done this before. [0:20:£6.9]

Tina Elliott: Yes, it would be occasional, occasional you’d have a witness coming in by video from overseas. But obviously the pandemic changed everything. And there are sort of issues of international relations that surround this so that there are two things. There is presidential guidance from the president of the employment tribunal as to that process. And you have to be sure that the country from which your witness is seeking to give evidence is content with that and approves that, because some countries do not consent for evidence to be given in a foreign court from their jurisdiction.

The Foreign and Commonwealth Office have published some guidance on that relatively recently, and if you just search on Foreign and Commonwealth or taking evidence from overseas it’ll come up, and there’s a list of countries who approve it, for example the USA and Canada are such countries. But you know, there are certain European countries that don’t approve it. The presidential guidance, which you can also find online, that sets out the process for getting approval. But there are some countries who’ve declined approval. So you’ve got to be really careful about that. For example, if you’re running a video hearing and one of your witnesses says, ‘Oh yeah, you know, I’ll just from my holidays in wherever I am ‘cause I’m going to be on holiday at that time,’ you need to be sure that the country from which they’re giving that evidence is okay with it, because that’ll enable your hearing to topple over if you’ve got someone, you find out in the hearing and you say, ‘And where are you, so-and-so?’ and they go, ‘Oh, I’m in such-and-such a country,’ and permission hasn’t been obtained. Then you can’t roll with that evidence.

Use of technology in tribunals

Robert Shore: Yeah. So technology then obviously has had a huge impact on the way that cases are conducted recently, as you say, in the pandemic period and since. Has it affected the efficiency of tribunals in any way, would you say, or has it been good for them? [0:22:50.4]

Tina Elliott: I think it’s been good because I think it gives the tribunal system a wider pool of judges to call on if it’s a video hearing and there’s less demand on physical tribunal rooms if you’re doing video hearings. So from…I would say it’s been an incredibly positive development to be able to do video hearings. And to do the more routine case management hearings by video. I think there’s a cost saving as well for parties because you haven’t got to travel or pay necessarily lawyers for that time and so on, or have your HR person out for a huge amount of time attending a case management hearing. It can be done from your own workplace.

Things to be mindful of

Robert Shore: Mm. So can I ask you – obviously we’ve been going through some practical areas with some tips so far about common mistakes you see being made by HR and respondents, and whether there’s any advice that one could give in terms of just saying, you know, ‘Be mindful of this,’ because it just happens so frequently? [0:23:58.8]

Tina Elliott: One of the things I would say is when you’re putting together your set of documents – as I say, we use this old-fashioned terminology of ‘the bundle’ – for the hearing, I would say that in my experience in tribunal hearings we’re probably taken to only about a third of the documents that are in the set of documents. So with putting your documents together, ‘cause it’s hard work, think about, ‘What’s that document going to help the tribunal with? What issue is it going to help the tribunal decide?’ And in that you can refer back to your case management order, which sets all the issues out, or if it’s a conduct, unfair dismissal, for example, you know the questions that they’ve got to look at. Did they have a reasonable belief in the guilt of the employee? Was that based on a reasonable investigation? Was dismissal fair in all the circumstances and within the band of reasonable responses and so forth. So you know the questions that the tribunal’s got to decide. Do you need all those documents?

And then I think with witness statements, again it’s sticking to your first-hand knowledge. With an HR witness, often they might not have dealt with the case the whole way through, so they might have to say, ‘Well, I didn’t deal with that personally but I’ve looked at the HR records and I can say from those records that X, Y and Z.’ So proportionality on both statements and documents is very helpful.

And I think your case management order is a really good guide on how you’re dealing with the case.

Robert Shore: Yeah. So you need to be focused. It’s good to be economical with the materials you then provide, in order to show that you’re really thinking carefully about the issues that have been identified. [0:25:50.0]

Tina Elliott: I think another tip that I would give to HR people when they’re putting their documents together is do a big check of it before you submit it to the tribunal. I was doing a case recently where the question that was in sharp focus was about whether this individual has been offered suitable alternative employment, and that went both to unfair dismissal and reasonable adjustments for disability discrimination. The email setting out the available vacancies was there but the top bit was missing. So we couldn’t see when that email had been sent. And it was critical to know, critical to the case to know when had the claimant been made aware of these job vacancies. And the very last bit of the document was missing. So then you’ve got a flurry in the middle of the hearing where HR have got to run off, find the whole email, get that submitted to the tribunal so that we find a) the date it was sent, which was critical, and b) the end of the document actually had a couple more jobs referred to on it. So have a really good look. Have you only got part of that email and do we need the rest? And also try not to duplicate email chains again and again and again from the other perspective.

I would always say to a witness, ‘If you’re giving evidence, re-read your own documents at least three times before you go and give your evidence.’ ‘Cause we can tell if you’re hoofing it and you haven’t looked at it for ages and you can’t really remember. So read it back to yourself a good three times so you refresh it. ‘Cause it’s going to be a year, a year and a half at least since you created that email or you first read that email. So it’s refreshing your memory on it, ‘cause that’ll help you when you’re giving evidence.

Changes to the law

Robert Shore: So can I just ask you about any recent legislative changes or notable cases that have had a significant impact on the tribunal process? So video hearings we know have sort of changed things in some ways, but how about, you know, from other sources such as legislation or case law? [0:27:54.9]

Tina Elliott: I can’t think of anything that’s been a big change recently. You know, when the big changes happen it takes a good number of months before that will filter through into a piece of litigation. Because of that backlog, you know, the claim starts but it’s a good year and a half or so before that might hit us in terms of actually dealing with the case law. So it’s…I mean, a couple of years or so ago, you know, the furlough scheme and all that sort of thing was massive, and all the implications of that. But that’s now filtered, mainly filtered through. You might still get it if you’ve got a discrimination claim which, you know, focuses back over a number of years. You know, there’s been big case law recently on holiday pay and that sort of thing, but that’s yet to filter through. So yeah, and I guess it’s when it actually comes in front of you that you think, ‘Oh yes, that’s a big change.’

Robert Shore: Yeah. So actually, with the changes to holiday pay, are you thinking hard at the moment about how to deal with this, or actually is it really something you deal with when it comes in front of you? [0:29:19.2]

Tina Elliott: You deal with it when it comes in front of you. You know, you’ll be abreast of the changes, but then you’re going to be applying it to a specific set of facts, so you wait for that to come up and you’re then focusing in on, ‘How does that development affect this particular set of facts?’ And you never know what’s coming next, as the next case in front of you.

Robert Shore: And finally, one more question if I may, which is how does the tribunal ensure fairness and impartiality throughout the process? [0:29:52.8]

Tina Elliott: It’s part of what we call the ‘overriding objective’, and that’s set out in Rule 2 of the Employment Tribunal Rules of Procedure. One of the aspects of the overriding objective is to deal with cases fairly and justly, and to keep parties on equal footing, and that’s a delicate and a balancing process because you may be dealing with an unrepresented party as against a party, a respondent with a huge legal team behind them. And I think it’s probably the biggest part of being a judge is ensuring that justice and fairness and equality, as best you can in the circumstances, is paramount in our minds, and it’s spelled out for us in the tribunal rules at the very beginning. So it’s something that we’re doing all the time.

Robert Shore: Tina, that’s been a fantastic overview and a dive into some of the detail of tribunal hearings, and wonderful to have your insights. Thank you so much. [0:30:58.0]

Tina Elliott: Thank you very much.

Robert Shore: And so thanks again to Tina and thanks to everybody for listening. And I’ll just say then, until next time.